within the meaning of the Workmen's Compensation, Insurance and Safety Act; (2) that if it is determined that the relation of employer and employee existed at the time the injury was suffered, the employment was both casual and not in the usual course of the trade and business of the municipality, which latter case is excepted from those in which compensation is provided to be awarded by the act. We agree with the petitioner in its conclusion that the relation of employer and employee did not exist between the claimant and the municipality. Meehan at the time he suffered his injury was performing a public duty which may be imposed upon any citizen-the obligation exists without contract. In determining the nature and extent of the duties of an election officer, the law alone must be looked to. There is no power of direction given to or left in the city regarding the performance of such duties. In other words, the so-called "employer" in such a case has no control over the actions of the election officer. It has no right or power to provide means to secure the safety of the officer which it may require him to take advantage of, and therefore is without the right to safeguard its interests. Had the city, acting in its own interests, proposed to furnish an entirely safe means of transportation to the election officer in order to enable him to transport the election returns from the polling place to the city hall, it was without power to compel him to use such means. The officer had the right to choose the most dangerous and hazardous means affording such transportation, and the city, if it is held that the relation of employer and employee existed, would be without the power to reduce the possibility of damage accruing by reason of a claim for compensation for injuries which might result. There was here no "contract" of employment which is deemed an essential element in defining the term "employee" under our decisions. (Claremont Country Club v. Industrial Accident Commission, 174 Cal. 395, [163 Pac. 209]; Mono County v. Industrial Accident Commission, 175 Cal. 752, [167 Pac. 377].) In the latter case it was held that a sheriff of a county, injured in the performance of his duties, could not recover compensation under the Employers' Liability Act. In the case last cited the decision in Sibley v. State, 89 Conn. 682, [L. R. A. 1916C, 1087, 96 Atl. 161], is approved. In that case the court referred to the contention that there was

shown a contract between the state and its officer (a sheriff) to pay salary compensation, and that where such contract existed, the full relation of employer and employee resulted under the compensation act there being considered. The court said: "But it is urged in behalf of the claimant that the statute attaching a salary to the office of sheriff raises an obligation or duty on the part of the state to pay it, and that if it refuses to pay, the law will give the sheriff an action quasi ex contractu upon the obligation, and that the officer was thus under a quasi contract of service with the state. If for the argument's sake this were to be conceded, it would not advance the claimant's cause. A quasi contract is no contract. The term 'quasi contract' describes a situation where there is an obligation or duty arising by law upon which the same remedy is given as would be given if the obligation or duty arose out of contract. The term itself implies that the obligation or duty is not a contractual one." Mono County v. Industrial Accident Commission, supra, contains a discussion as to the effect of certain amendments made to the act in 1915 and the prior legislative history, all of which is pertinent to the argument here advanced on behalf of respondents and is adverse to the contentions here made by the latter.

For the reasons stated, we think that the award cannot be sustained, and it is therefore annulled.

Conrey, P. J., and Shaw, J., concurred.

[Civ. No. 2364. Second Appellate District.-October 18, 1917.] THE COUNTY OF SAN BERNARDINO, etc., Petitioner, v. INDUSTRIAL ACCIDENT COMMISSION OF THE STATE OF CALIFORNIA et al., Respondents.

WORKMEN'S COMPENSATION ACT-INJURY TO ROAD CONSTRUCTION FOREMAN-ASSAULT BY DISCHARGED LABORER-INJURY ARISING OUT OF AND IN COURSE OF EMPLOYMENT.-An injury received by a road construction foreman from a blow delivered by a discharged laborer is an injury arising out of, and in the course of, his employment under the Workmen's Compensation Act, since it occurred while he 85 Cal. App.-8

was engaged in doing work within the scope of his employment, and at a time and place when and where it was his duty to perform it, and it arose out of his employment because it followed as a natural incident of the work occasioned by the nature of the employment and performance of the duty which it imposed upon him as such foreman.

APPLICATION for a Writ of Review originally made to the District Court of Appeal for the Second Appellate District to annul an award of the Industrial Accident Commission.

The facts are stated in the opinion of the court.

Leonard, Surr & Hellyer, T. W. Duckworth, and John L. Campbell, for Petitioner.

Christopher M. Bradley, and Daley & Byrne, for Respondents.

SHAW, J.-Certiorari to review an order of the Industrial Accident Commission awarding compensation to Homer C. Gragg for an injury sustained while in the employ of petitioner.

The sole contention of petitioner, as presented in its brief. is that "the injury did not arise out of the employment and was not incidental thereto." In our opinion, the facts are identical with those involved in Western Indemnity Co. v. Pillsbury, 170 Cal. 686, [151 Pac. 398, 10 N. C. C. A. 1], wherein a like award was affirmed.

As appears from the record, Gragg was foreman of a gang of some eighteen or twenty men employed by the county of San Bernardino, who, under his direction, were engaged in the construction of a concrete road. He was authorized and empowered in his discretion to discharge any of the men from the work for insubordination, neglect, or refusal to perform the same in the manner directed by him. Among the employees at the time in question was one Carl Hansen, engaged in spreading concrete upon the roadway. The foreman called Hansen's attention to the fact that he was not spreading the concrete properly, and, taking the shovel, showed him how he wanted it done. Hansen resented this, saying: "To hell with you! I know how to do this." In response to which Gragg said: "If you feel that way about it,

you are fired right now. I will put a man in your place"; and thereupon he called another employee whom he substituted for Hansen. Gragg proceeded with other duties and Hansen, following him, demanded his pay, to which Gragg replied: "I cannot pay you. You will have to go up and see the timekeeper; he makes up the time." Hansen was told where to find the timekeeper, whose location was about a mile distant. Gragg again walked away, followed by Hansen, who came up behind and struck him a blow with his fist, knocking him down and causing the injury for which he applied for compensation.

The only difference between the case of Western Indemnity Co. v. Pillsbury (known as the Rudder case) and this, is that in the former the foreman was the aggressor, while in the case at bar Hansen was the aggressor, making an unprovoked attack upon Gragg for no cause other than the fact that he had been justly discharged from the work for refusing to perform it in the manner directed. Petitioner claims that in the Rudder case the question as to whether the injury arose out of the employment was not presented or considered. In this contention counsel is in error. The court in its opinion said: "The main contentions of the petitioner are that there is no evidence to show . . . that the injuries happened while Rudder was performing a service incidental to and in the course of his employment." The statute provides for an award of compensation for injuries sustained by employees, "arising out of and in the course of the employment"; and the language of the supreme court quoted was used in the sense and meaning of the statute. That the applicant's injury was sustained in the course of his employment conclusively appears from the fact that it occurred while he was engaged in doing work within the scope of his employment, and at a time and place when and where it was his duty to perform it; and it arose out of his employment because it followed as a natural incident of the work occasioned by the nature of the employment and performance of the duty which it imposed upon him as such foreman. (McNichol's Case, 215 Mass. 497, [L. R. A. 1916A, 306, 102 N. E. 697]; Bryant v. Fissell, 84 N. J. L. 72, [86 Atl. 458].) "It [the accident] need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment and to have followed from that source

as a rational consequence." (Kimbol v. Industrial Accident Commission, 173 Cal. 351, [Ann. Cas. 1917E, 312, L. R. A. 1917B, 595, 160 Pac. 150]; Reithel's Case, 222 Mass. 163, [L. R. A. 1916A, 304, 109 N. E. 951].) The circumstances are such as to leave no doubt that the risk of such unwarranted attack was one connected with the employment and directly traceable to the conditions under which the duty was performed.

The character of the employee, whether peaceable or quarrelsome, is immaterial to the question. A docile mule has been known to kick his attendant, and we assume that had applicant in the performance of his duties and while passing a team of mules engaged upon the work been kicked by one of them, no question would arise as to his right to recover for injury thereby inflicted. In our opinion, there is no distinction between the facts presented in the Rudder case and those here involved.

The order making the award is affirmed.

Conrey, P. J., and James, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on December 17, 1917.

[Civ. No. 2133. First Appellate District.-October 18, 1917.] LEON LEWIN, Respondent, v. R. G. HANFORD et al., Appellants.

GUARANTY CONTRACT OF SALE PLEADING JUDGMENT FOR PLAINTIFF ON MOTION.-Where a complaint alleged and the answer admitted a written agreement between plaintiff and an investment company, by which the former agreed to sell and the latter to purchase certain bonds and stock for a stipulated price, and it was also alleged and admitted that simultaneously with the execution of the agreement the defendants executed to the plaintiff a written guaranty that the Investment Company would purchase, take, and pay for the bonds and stock, and that in default thereof the defendants would pay the stipulated purchase price, and the bonds and stock should thereupon belong to the defendants, an answer by the guarantors